Synthes (USA) v. Spinal Kinetics Inc.

Filing 526

ORDER SUBMITTING MOTION TO HAVE CASE DECLARED EXCEPTIONAL ON THE PAPERS; DENYING MOTION TO ADDRESS NEW AUTHORITY; GRANTING MOTION TO CHANGE TIME FOR FILING OF SPINAL KINETICS' ATTORNEYS' FEES MOTION (rmwlc2, COURT STAFF) (Filed on 5/1/2012)

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E-FILED on

5/1/12

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IN THE UNITED STATES DISTRICT COURT

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FOR THE NORTHERN DISTRICT OF CALIFORNIA

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United States District Court
For the Northern District of California

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SAN JOSE DIVISION

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SYNTHES USA, LLC (f/k/a SYNTHES
(U.S.A.)); SYNTHES USA SALES, LLC; and
SYNTHES, INC.,

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Plaintiffs,
v.
SPINAL KINETICS, INC.,

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Defendant.

No. C-09-01201 RMW

ORDER SUBMITTING MOTION TO HAVE
CASE DECLARED EXCEPTIONAL ON THE
PAPERS; DENYING MOTION TO
ADDRESS NEW AUTHORITY; GRANTING
MOTION TO CHANGE TIME FOR FILING
OF SPINAL KINETICS' ATTORNEYS' FEES
MOTION

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Currently pending before the court are: (1) Synthes' motion for judgment as a matter of law

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(Dkt. No. 473); (2) Spinal Kinetics' renewed motions for judgment as a matter of law as to damages

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(Dkt. No. 505) and (3) as to non-infringement under the doctrine of equivalents (Dkt. No. 506); (4)

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Spinal Kinetics' motion to have this case declared exceptional under 35 U.S.C. § 285 (Dkt. No. 513);

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(5) Synthes' motion to file a supplemental brief addressing new authority (Dkt. No. 517); and (6)

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Spinal Kinetics' motion to change time for its filing of a motion for attorney's fees (Dkt. No. 525).

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Given the close relationship of the issues, the court finds that it would be most efficient to

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decide the motion and renewed motions for judgment as a matter of law filed by both parties

No. 09-C-01201

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simultaneously with Spinal Kinetics' motion to have this case declared exceptional. However, given

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that judgment was not ultimately entered in this case until April 23, 2012, the court is unsure of

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whether the parties plan to file additional papers in support of a renewed motion for judgment as a

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matter of law. See Fed. R. Civ. P. 50(b) (a party renewing a motion for judgment as a matter of law

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may file the renewed motion within 28 days of the "entry of judgment"). Accordingly, court orders

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as follows:

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(1) The parties must inform the court whether they plan to submit any further briefing

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concerning their pending post-trial motions within ten (10) days of the date of this order.

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United States District Court
For the Northern District of California

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(2) The May 4, 2012 hearing on Spinal Kinetics' motion to have this case declared

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exceptional under 35 U.S.C. § 285 is vacated. The motion will be deemed submitted on the

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papers, and will be decided in conjunction with the three pending motions for judgment as a

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matter of law. If the court later determines that oral argument is necessary on either the

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JMOL motions or the exceptional case motion, it will contact the parties to schedule a

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hearing at that time.

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(3) Synthes' motion to address a new authority is denied for failure to comply with Local

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Rule 7-3(d)(2). Further, the court does not believe that consideration of Synthes' cited new

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authority is necessary to the resolution of Spinal Kinetics' motion to have this case declared

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exceptional.

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(4) Spinal Kinetics' motion to change time for the filing of its motion for attorneys' fees is

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granted. Spinal Kinetics may file a motion for attorneys' fees, to the extent that such a

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motion is warranted, no later than fourteen (14) days after the court issues an order resolving

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its motion to have this case declared exceptional.

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DATED:

May 1, 2012
RONALD M. WHYTE
United States District Judge

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No. 09-C-01201

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